Must It Always Be Wartime?

Rosa Brooks moderating a discussion on ‘the next generation’s human rights challenges’ during a program that was cosponsored by The New York Review, Georgetown University Law Center, Washington, D.C., April 2014

Societies often go to great lengths to separate war from peace. Wars are declared, sometimes with elaborate ritual. Soldiers wear uniforms and are part of specialized hierarchical organizations. Battlefields are often delineated. Maintaining this distinction is important because what is permissible in wartime is often prohibited in peacetime. Preventing the rules of war from infecting views of moral conduct in times of peace is essential for preserving civilization.

Yet particularly since September 11, 2001, the line between war and peace has blurred. The “war” on terrorism that President George W. Bush chose to declare was very different from, say, the confrontations between large national forces of World War II or even traditional counterinsurgency battles on a nation’s own territory. Al-Qaeda is a shadowy organization, many of its offshoots and successors even more so. The global and decentralized threat posed by the self-declared Islamic State presents a further complication.

The decision to treat the September 11 attack as an act of war rather than a horrible crime was a policy choice (one opposed in these pages by Philip Wilcox, a former American diplomat*). We could easily imagine a President Al Gore making a different choice. But once made, the decision to pursue “war” against al-Qaeda and its associated forces had major implications.

In war, opposing combatants can be targeted and killed by virtue of their status as combatants, without regard to their conduct at that moment. Captured combatants in wars between countries can be detained without charge or trial until the end of the armed conflict. In peacetime, by contrast, law enforcement rules allow the use of lethal force only as a last resort to stop an imminent lethal threat, and detentions generally can be sustained only after charges have been filed and a trial has taken place.

In view of the stakes, the debate about the proper way to characterize efforts to counter terrorism has understandably been intense. The stakes are only higher under President Donald J. Trump, given his apparent willingness to push the limits of legality in fighting terrorism. But as is often the case when alternative conceptions compete for recognition, resolving this debate has been difficult.

Rosa Brooks suggests, in her lively, informed, and insightful new book, that we consider a different approach. Brooks is a Georgetown law professor and former human rights investigator brought up by “left-wing antiwar activists.” But she also served as counselor to Michèle Flournoy, for two years the US undersecretary of defense for…

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